Case: 12-40191 Document: 00512109103 Page: 1 Date Filed: 01/10/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 10, 2013
No. 12-40191
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
TYRONE EUGENE JORDAN,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:10-CR-20-3
Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Tyrone Eugene Jordan timely appeals from the district court’s imposition,
on remand, of 63-month concurrent sentences for his convictions of conspiracy
to launder money and conspiracy to transport illegal aliens. For the first time,
Jordan raises a sufficiency of the evidence claim challenging his money
laundering conviction. He acknowledges that this claim should have been raised
in his initial appeal, but he contends that he should be allowed to raise it now
because his appellate counsel was ineffective in failing to raise it in his initial
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 12-40191 Document: 00512109103 Page: 2 Date Filed: 01/10/2013
No. 12-40191
appeal. Jordan’s failure to raise the sufficiency issue in his initial appeal bars
its review unless the failure to do so will result in manifest injustice. See United
States v. Lee, 358 F.3d 315, 321 (5th Cir. 2004). Jordan cannot make that
showing because he can raise this claim in the context of an ineffective-
assistance-of-appellate-counsel claim. His ineffective-assistance-of-appellate-
counsel claim must be raised in a 28 U.S.C. § 2255 motion, however, because the
record is not sufficiently developed. See United States v. Montes, 602 F.3d 381,
387 (5th Cir. 2010).
Jordan also seeks to relitigate this court’s rejection in his initial appeal of
his claim that the district court clearly erred by enhancing his offense level by
six levels based on the finding that he knew that the funds that he laundered
through his wife’s bank account were drug proceeds. The relitigation of the issue
is precluded by the law of the case doctrine unless Jordan has demonstrated that
the enhancement resulted in manifest injustice. See United States v. Teel, 691
F.3d 578, 582-83 (5th Cir. 2012). He has failed to make that showing in light of
the trial evidence of his knowledge and involvement in Arturo Apac’s illegal
operations and the reliable information in the presentence report. Thus, review
of this issue is barred under the law of the case. Id.
Jordan asserts that his within-guidelines sentence for conspiring to
launder money is procedurally and substantively unreasonable because it was
based on the district court’s erroneous finding that he was involved in drug-
trafficking activities, which was an irrelevant factor. Jordan did not object on
this ground in the district court. Thus, review is for plain error. See United
States v. Isiwele, 635 F.3d 196, 204 (5th Cir. 2011). A review of the resentencing
hearing reflects that the district court did not base the sentence on Jordan’s
personal involvement in drug trafficking. The district court concluded that
despite his lack of a past criminal history, a sentence at the top of the guidelines
range was appropriate because of the adverse effects resulting from Jordan’s
assistance to Apac in expanding his drug trafficking operation, Jordan’s
2
Case: 12-40191 Document: 00512109103 Page: 3 Date Filed: 01/10/2013
No. 12-40191
continued involvement in the illegal activities even after the seizure of the funds
and the airplane by authorities, and his refusal to accept responsibility for his
wrongdoing. Jordan has not rebutted the presumption of reasonableness
afforded his guidelines range sentence. See United States v. Rodriguez, 660 F.3d
231, 233 (5th Cir. 2011); United States v. Cooks, 589 F.3d 173, 186 (5th Cir.
2009). Thus, he has failed demonstrate that the sentence was procedurally or
substantively unreasonable and has failed to show plain error committed by the
district court. See United States v. Andino-Ortega, 608 F.3d 305, 309 (5th Cir.
2010).
Finally, Jordan argues that his 63-month sentence for transporting illegal
aliens is both procedurally and substantively unreasonable. He asserts that,
because the sentence is dramatically above the guidelines range, the court can
apply a presumption of unreasonableness and that the sentence represents a
clear error in balancing the sentencing factors. This issue is also reviewed for
plain error. See Isiwele, 635 F.3d at 204. The district court did not depart
upward because the total offense level for both offenses was calculated based on
the rules for multiple counts charged in the same indictment; therefore, each
count had the same sentencing guidelines range. See U.S.S.G. Ch. 3, Pt. D,
intro. comment.; §§ 3D1.1, 3D1.4. The district court relied on the relevant fact
that Jordan participated in the alien trafficking even after the authorities seized
the cash and the plane and that he continued to associate with Apac, a known
criminal. Jordan has not rebutted that presumption of reasonableness of the
sentence for conspiring to transport illegal aliens. See Cooks, 589 F.3d at 186.
He has failed to demonstrate that the sentence was procedurally or
substantively unreasonable, and thus, he has failed to show plain error
committed by the district court. See Andino-Ortega, 608 F.3d at 309.
AFFIRMED.
3